Marlene Zelaya v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 23 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARLENE M. ZELAYA, No. 18-72133
Petitioner, Agency No. A073-931-822
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 10, 2020**
Pasadena, California
Before: O’SCANNLAIN, OWENS, Circuit Judges, and KENNELLY, *** District
Judge.
Marlene M. Zelaya, a native and citizen of Honduras, petitions this court for
review of the Board of Immigration Appeals’ (BIA) decision denying her motion
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
to reopen (MTR) deportation proceedings sua sponte pursuant to 8 C.F.R.
§ 1003.2(a). We deny the petition.
To exercise its sua sponte reopening power, the BIA “must be persuaded
that the . . . situation is truly exceptional.” Bonilla v. Lynch, 840 F.3d 575, 585
(9th Cir. 2016) (citation omitted). But the BIA “is not required . . . to reopen
[deportation] proceedings sua sponte,” even if the petitioner establishes
“exceptional” circumstances. Id. The decision “is committed to [the agency’s]
unfettered discretion.” Ekimian v. I.N.S., 303 F.3d 1153, 1159 (9th Cir. 2002)
(citation omitted). As a result, we have jurisdiction only “for the limited purpose
of reviewing the reasoning behind the decisions for legal or constitutional error.”
Bonilla, 840 F.3d at 588. The BIA commits legal error when it relies on an
“incorrect legal premise.” Id.
The BIA listed three grounds for denying Zelaya’s MTR sua sponte, all of
which ordinarily implicate 8 C.F.R. § 1003.2(c): (1) Zelaya’s lack of timeliness in
waiting over 20 years before moving to reopen proceedings; (2) her lack of due
diligence; and (3) the lack of any application for specific relief she would seek if
the BIA were to reopen proceedings. While Zelaya is not necessarily required to
meet section 1003.2(c) factors as part of her MTR, it is not legal error for the BIA
to consider these factors pursuant to its “unfettered discretion” in deciding whether
to exercise its sua sponte authority. See Ekimian, 303 F.3d at 1159. No authority
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precludes the BIA from considering timeliness and due diligence in determining
whether the “situation is truly exceptional.” Bonilla, 840 F.3d at 585 (citation
omitted); see Ayala-Perez v. Sessions, 682 F. App’x 590, 591 (9th Cir. 2017)
(concluding that the petitioner’s “contention that the BIA erred in denying sua
sponte reopening for lack of due diligence does not raise a legal or constitutional
error to invoke our jurisdiction”). Therefore, the BIA did not commit legal error in
considering these factors. Nor did the BIA misapprehend the factors in applying
them.
Zelaya also raised a constitutional challenge based on ineffective assistance
of counsel. But the BIA concluded that sua sponte reopening was not warranted
“[e]ven assuming a due process violation.” Therefore, the BIA’s decision
contained no constitutional error.
PETITION DENIED.
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